Assignment of Custody after Divorce. Differences and Similarities in the Case of Dissolutions of Heterosexual and Homosexual Couples

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Assignment of Custody after Divorce. Differences and Similarities in the Case of Dissolutions of Heterosexual and Homosexual Couples

Asignación de la custodia tras el divorcio. Diferencias y similitudes en el caso de disoluciones de parejas heterosexuales y homosexuales

Diego Becerril-Ruiz, José Jiménez-Cabello and José Manuel García-Moreno

Key words

Consensus Custody

• Divorce

•

Heterosexuals

•

Homosexuals

•

Abstract

Custody assignment after divorce is an increasingly recurrent area of study. The literature on this topic has tended to consider the dissolution of only heterosexual couples. Therefore, this article examines the influence of certain social variables and detects potential differences or similarities between heterosexual and homosexual couples in Spain. Quantitative methodology was used, along with descriptive and multivariate analyses, with data from the Annulments, Separations and Divorces Statistics (ENSD) of the Spanish National Statistics Institute (INE). The main conclusion reached is that shared custody is more commonly assigned in homosexual couples as compared to heterosexual ones. The number of children, the presence of conflict during the divorce proceedings and the specific Spanish autonomous community are variables that are key to understanding the assigned custody modality.

Palabras clave

Consenso Custodia

•

Divorcio

•

Heterosexuales

•

Homosexuales

•

Resumen

La asignación de la custodia es un ámbito de estudio cada vez más recurrente. La literatura muestra que el interés por esta temática se ha centrado, principalmente, en disoluciones de parejas heterosexuales.

El presente artículo pretende conocer, para el caso de España, cómo influyen determinadas variables sociales, y detectar posibles diferencias o similitudes, en el caso de parejas heterosexuales y homosexuales. Se utiliza metodología cuantitativa con análisis descriptivo y multivariante, usando la Estadística de Nulidades, Separaciones y Divorcios (ENSD) del Instituto Nacional de Estadística (INE). La conclusión principal es que la modalidad de custodia compartida está más presente en el caso de parejas homosexuales que en heterosexuales, siendo el número de hijos, la conflictividad en el proceso de divorcio y la comunidad autónoma (CC. AA.) claves para entender qué modalidad de custodia se asigna.

Citation

Becerril-Ruiz, Diego; Jiménez-Cabello, José and García-Moreno, José Manuel (2021). “Assignment of Custody after Divorce. Differences and Similarities in the Case of Dissolutions of Heterosexual and Homosexual Couples”. Revista Española de Investigaciones Sociológicas, 176: 79-100. (doi:

10.5477/cis/reis.176.79)

Diego Becerril-Ruiz: Universidad de Granada | [email protected] José Jiménez-Cabello: Universidad de Granada | [email protected]

José Manuel García-Moreno: Universidad de Málaga | [email protected]

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I

ntroductIon

Over recent decades, Spain has undergone unprecedented social changes, becoming one of the most advanced countries in the world. Along with major technological and scientific advances, it has also experienced intense social transformations, including an evolution in how humans cohabi- tate, directly associated with these changes and adaptations. Both the country’s social structure as well as its social institu- tions have undergone a metamorphosis over a very short time period (Torres-Al- bero, 2015).

Signs of this Spanish social transformation can be seen in demographic changes, with the intense incorporation of women in the labor market, the establishment and consolidation of new types of families, the secularization of society and the transformation of gender roles, among others. All of this has created a society that is completely distinct from that of 40 years ago (González and Requena, 2008). The family institution has also undergone significant changes in many ways, from its definition to its func- tions and configurations (Meil, 2003; Ayuso, 2019). Therefore, major modifications have been made in the regulatory framework of the same. Two changes are of special note:

the 2005 Divorce Law and the legalization of homosexual marriage in the same year, resulting from and extending the transformation of the Spanish family in three specific aspects: the perception of the family breakup, the assignment of custody and the effects of the legalization of homosexual matrimony on custody assignment proceedings.

First, in general terms, the perception of the breakup of marriage has evolved, and divorce, specifically, has become increasingly more widely accepted in Spanish society. What was initially considered in a stigmatized manner has gone on to be considered a solution to unsatisfactory com-

mon life projects. Currently the option of divorce has been consolidated, with legal changes being extended to this process, without social rejection (Becerril, 2008).

Although the legalization of divorce is not the primary focus of this study, it is necessary to highlight Law 15/2005, of July 8, which modified the Civil Code and the Law on Civil Procedure in the area of separa- tion and divorce in Spain, offering major advances in this area. Above all, it permitted the change from a model of distinct phases by which divorce could be attained, to another that eliminated the need for prior sep- aration, thereby reducing the time required for this process.

In this transformation, Spain is one of the countries of the European Union that has verified changes in data on divorce (Becerril and Jiménez, 2019). It has recorded an increase, peaking in 2006, although since 2015, the numbers have been situated at less than 100,000 annual divorce procedures and has been progressively declining, with 95,254 divorces taking place in 2018. However, at this point we should clarify that although the evolution of divorce has been on the rise, a turning point was reached in 2005-2006 (with an increase from 72,848 to 126,952 divorces in this year). This may be due to a legal change (the possibility of accessing divorce without the need to first adopt a mandatory separa- tion period). Thus, the increase may not be due to a higher number of couples choos- ing to divorce.

Second, when matrimonies are dissolved, there may be various consequences if the couple has children in common. This work examines the presence of children and the decision made regarding the determination of their custody. Law 15/2005 permitted the normalization of a situation that had already been recognized within the Euro- pean framework (in Germany in 1997, Hol- land in 1998, Austria in 2001 and France in 2002): the introduction of shared custody.

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The presence (or lack) of children is relevant in a large percentage of divorces in Spain and it may be highly determinant in the result of the divorce process, since it tends to be a significant source of conflict (Becerril, 2014; Jousselme, 2008). Accord- ing to the Statistics on Annulments, Sepa- rations and Divorces (ENSD) of the Spanish National Statistics Institute (INE), in 2018, divorces involving dependent children rep- resented 56.9% of all divorces, a figure that is quite similar in the country’s neighboring countries, such as France, in which 53.7%

of the matrimonies that divorced in 2017 had children in common (Ministry of Jus- tice, 2018).

This study considers the custody of children; therefore, it is necessary to define this concept, as well as the relevant modalities existing in Spain. Custody refers to daily care, referring, therefore, to co-resi- dence and the time and space shared between each parent and their minor children (Solsona, Spijker, and Ajenjo, 2017) or the legal situation resulting when a court, via sentence, grants the guardianship and custody of minor children to one or both parents, once the family unit has dissolved (Prieto, 2014). In Spain, the following custody modalities (Catalán, 2011, 2015) exist:

the exclusive custody of one of the parents, shared custody, and situations in which the custody is granted to other individuals. This latter will not be considered in our study given that it is relevant in a very small percentage of cases (0.4% in 2018).

Third, another determinant aspect is the reform of the Civil Code, which included the legalization of homosexual matrimony in the Spanish legal order, making Spain the third country in the world to legalize this type of marriage. This led to the possibility of the custody and adoption of children by homosexual couples, future matrimonial dissolutions and the resulting custody assignment process for children, an aspect which has not received follow up attention.

These three changes lead to the study objective: to determine which social variables are related to the assignment of custody after divorces of homosexual and heterosexual matrimonies and the potential differences and similarities between the same. There has been a clear lack of analysis of homosexual matrimonies in Spain, from a sociological perspective. It should be noted that this lack of research is especially evident in the evolution of matrimonial break ups in this type of couples. This work aims to fill the gap in the field by this lack of studies. Therefore, and as a study hypothesis, it has been established that, regardless of matrimony type, the presence of minor or legally-aged dependent children, conflict in the divorce process and specific regulations of an autonomous community are variables influencing the custody modality assigned after the divorce proceeding.

The assignment of custody: an emerging reality

First, it is interesting to determine the distribution of custodies in divorce proceedings.

According to data from the ENSD (INE), divorce has been linked to very high and majority percentages of exclusive maternal custody. Despite the 2005 reform, maternal custody remained above 80% until 2011.

Since 2011, a significant decrease has been registered, down to 61% by 2018. Even so, exclusive maternal custody clearly domina- tes over the other modalities.

The main explanatory factor behind this is the historic role assigned to the maternal figure and women, in general, as the car- egiver (Barrantes and Cubero, 2014). This would justify the fact that, since the mother is the one who should care for the minor children, she is also the one who should continue caring for them after divorce. An- other justification is the fact that, even when the father participates and has a recognized

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role, the mothers are the ones that tend to care for the children and therefore, will receive guardianship and custody.

It may even be considered that judges grant this exclusive maternal custody for the purpose of dispute resolution in non- consensual divorces. But, when analyzing the rulings of divorce sentences, we find that contentious divorces are becoming increasingly less frequent. The percentage of consensual divorces has increased in Spain, making up approximately two-thirds of all divorces (Flaquer, 2012). The most recent data from the ENSD confirms and re- affirms this upward trend, as concluded by Flaquer for 2012. In 2018, consensual divorces made up 77.7% of all divorces, while in 2010, this figure was 67.4%. That is, exclusive maternal custody continues to be the majority modality within a panorama of consensus, although decreasing some- what in strength.

There is a clear diversity of variables that may be determinant in the assignment of custody. According to an extensive bibliographic review, the custody of children has been thoroughly analyzed from the perspective of disciplines such as law (Alascio, 2011; Alascio and Marín, 2007; Torres-Perea, 2011; Velasco, 2009;

Viñas, 2012) or psychology (Catalán, 2015;

Justicia, 2013; Yarnoz-Yaben, 2010). Like- wise, there is an increasingly large group of studies on custody assignment in Spain, considered from a demographic and sociological perspective.

Most of the current studies in the area refer to marriage break ups. Initially, limited data was available on this topic, and they even referred to the Second Repub- lic (Alberdi, 1979; Iglesias, 1977; Lezcano, 1979). But since the eighties, a trend began, although having limited continuity (Borrajo, 1989; López-Pintor and Toharia, 1989). During the nineties, accurate analyses were conducted on the biography of divorce and the consequences of the same

(Becerril, 1999), with the initial source of data being the 1991 Sociodemographic Survey. A few years later, the first analyses on divorce based on a more modern data source, the ENSD, appeared. For example, a very complete analysis of the evolution of divorce was conducted by Solsona and Simó (2007) who considered the sources, data and trends regarding divorce until this date. However, the ENSD did not offer information on the assignment of custody until 2007. Therefore, specific studies on this aspect began to appear after this date.

Of the early analyses including types of custody in Spain, those conducted by Spi- jker (2012) are noteworthy, since they considered the 2005 legal reform, citing the types of custody and their characteristics in a detailed work. In this analysis, there is an initial confirmation of some of the international hypotheses used. These include the hypothesis that younger parents who divorce are more likely to obtain shared custody. Similarly, it confirms that having two children is associated with a higher percentage of shared custody and that this may be granted, especially, in divorces by mutual agreement. Finally, joint divorce suits are found to facilitate shared custody, while in- dividual suits filed by one party are associated with a higher probability of the filing parent receiving exclusive custody. It also cites other analyses conducted subsequently in Catalonia (Solsona, Brullet and Spijker, 2014) or on a national level (Bece- rril, 2014; Solsona, 2015).

During these years, an initial monogra- phy edited by Picontó (2012) is of special note. It groups together works of legal ex- perts, sociologists and attorneys, offering diverse perspectives on shared custody.

Flaquer’s analysis (2012) considers the im- plications of shared custody and the lib- eralization resulting from the 2005 reform, which lacks the due measures of protection that should have been initiated. Custody would be examined in a subsequent work

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by Flaquer (2015), considering shared, with the understanding that it is beneficial from the minor’s perspective and verifying the importance of consensus in assigning this modality.

More recently, analyses on custody in Spain have been carried out in the social sciences (Becerril and Jiménez, 2016; Ruiz and Alcázar, 2017; Solsona, Spijker and Ajenjo, 2017). The objective of these works is to analyze the impact of new legislation in diverse autonomous communities on the assignment of custody, as well as the systemization and understanding of these changes with regard to the gender con- tract (Solsona, Spijker and Ajenjo, 2017), custody assignment criteria (Ruiz and Al- cázar, 2017) or the reaffirmation of the relevance of consensus on custody assignment (Becerril and Jiménez, 2016). Many of these works have been recently highlighted in a coordinated work by Becerril and Venegas (2017), which considered diverse legal, political, sociological, demographic and association dimensions. This is the most up-to-date and complete work on custody following divorce.

For decades now, the custody of children following divorce has been a subject of study on an international level, associat- ing diverse variables with its assignation.

These variables include:

1) Age of the mother: The trend identified in Canada suggests that the probability of shared custody is high in very young mothers (younger than 20), decreases in twenty-year old mothers and those in their early thirties, only to increase in those over the age of 33 (Juby, Le Bour- dais and Marcil-Gratton, 2005). Regar- ding the US, Cancian and Meyer (1998) came to similar conclusions, identifying that older mothers tended to be more likely to receive sole custody and that this was not as common in cases of younger mothers.

2) Number of children: Regarding this variable, the past results are dispa- rate. In the US, Maccoby and Mnoo- kin (1992) indicated that shared custody is more likely in couples with only one child, decreasing as the number of children increased. On the contrary, neither Cancian and Meyer (1998) nor Teachman and Polonko (1990) found a significant relationship for this variable in the US. In Canada, Juby, Le Bour- dais and Marcil-Gratton (2005) concluded that it was more likely to be granted in cases of two children, although the significance level was low. A higher probability for shared custody with two children was confirmed by Chausse- bourg, Carrasco and Lermenier (2009) in France.

3) Consensus or conflict: Shared custody is more likely in cases of low levels of conflict between the couple (Chausse- bourg, Carrasco and Lermenier, 2009).

For example, 81% of the shared custodies granted in France are in cases of mutual agreement (Jousselme, 2008).

4) Filing for divorce: In cases in which the woman files for divorce, there is a higher percentage of single-parent custody (Brinig and Allen, 2000). In reality, the mechanism is actually the reverse, that is, when the woman files for divorce, it tends to be because she has a very higher probability of gaining guardianship and custody of the children. Brinig and Allen examined distinct variables (such as power in the couple or economic earnings) conclu- ding that, of all of the factors, the possibility of remaining with one’s children is the most determinant one in filing for divorce.

It should be specified that all of these studies refer only to heterosexual matrimonies, failing to consider what may occur in the case of homosexual couples.

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Custody in homosexuals: the great unknown

As previously mentioned, Spanish society has experienced numerous transformations of late, with the approval of homosexual matrimony being one of these. Therefore, Law 13/2005 is of special relevance. It was approved by the Spanish government under the socialist party (PSOE) presided over by José Luis Rodríguez Zapatero, modifying the Civil Code in the area of the right to en-

gage in marriage and the resulting legalization of matrimony between homosexuals.

This law ended a long and complex process in Spain of lawsuits and very diverse situations of homosexuality (Becerril and Jimé- nez, 2016). Since then, it has been observed that matrimonies between individuals of the same sex have been on the rise (Graph 1), although homosexuals are less likely to ma- rry than heterosexuals (Cortina, 2016). This same law also opened up the possibility of adoption for homosexual couples.

GRaph 1. Evolution of homosexual matrimonies

0 1,000 2,000 3,000 4,000 5,000 6,000

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Source: Author’s own creation based on data from the ENSD.

Similarly, and associated with the existence of an increased number of matrimonies, the number of divorces in homosexual couples has progressively increased.

This is quite evident when considering the rates of matrimony and the married homosexual population in the analyzed period (Graph 2).

The divorce rate per 100 matrimonies continues to increase. While in 2007 this rate was 1.85, by 2012, it had reached 11.92 and in 2016, it was 31.50 In this last year, for every three matrimonies cele-

brated, one divorce took place, although it is true that this was an exceptionally high year for divorce and in 2017, this relationship decreased. As for the net rate of divorces per 1,000 married homosexual individuals, the registered trend indicates a gradual increase until 2014. In 2007, a rate of 4.13 was recorded, while in 2011, this rate had doubled (8.27) and it was five times higher by 2016 (20.51). This strong increase has been slowed down over the past year, as detected in the results from the previ- ous rate.

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Comparing the two measurements carried out, the common patterns are a strong increase in divorces, which is more moder- ate until 2013 but which increases considerably in 2014. As of 2014, there is a year of moderation and in 2016, peaks are reached for both rates, only to register a consider- able decrease in 2017. By 2017, 13.60%

of all of the homosexual matrimonies cele- brated had been dissolved by divorce.

In terms of how these divorces take place, they are characterized by a high degree of formal agreement, with divorces by mutual agreement making up over 80% of all homosexual divorces, reaching a stable rate of 85% over very recent years (Becer- ril and Jiménez, 2016). The disaggregation according to sex does not reveal significant differences, with both men and women registering high percentages of consensus.

Only 15% of homosexual divorces are set- tled in contentious trials.

When conducting a bibliographic search on studies of homosexual unions and the assignment of custody in Spanish populations, the results are negligible. When studies do appear, they tend to refer exclusively

to the marriages of this type of couples.

Studies by Meil (2001) examined de facto relationships and included homosexuals in their results. And studies of the 2001 cen- sus and the Natural Population Movement (MNP) by Cortina and Cabré (2010) are also quite relevant. Among other things, these studies offer information on age differences, which tend to be greater in homosexual couples than in heterosexual ones. Fur- thermore, Cortina (2016) notes that in homosexual couples, it is more likely for both partners to work (70%) as compared to heterosexuals (50%), and the distribution of household tasks tends to be more equal in homosexuals.

The study by Capote and Nieto (2018) is also quite relevant, offering a precise view of this type of matrimonies, some of its main characteristics and evolution, high- lighting the high level of homogamy in homosexual marriages, with respect to numerous variables (age, education, profession, civil status). Recently, Becerril and Jiménez (2016) examined the evolution of homosexual marriages, their break ups and certain details on the type of social variables that GRaph 2. Evolution of the divorce rate in homosexuals

0 5 10 15 20 25 30 35

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Rate per thousand married homosexual individuals Rate per hundred homosexual matrimonies Source: Author’s own creation based on data from the ENSD.

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potentially influence the assignment of custody when these matrimonies are dissolved.

However, as these authors noted, the evolution of homosexual matrimonies, their dissolutions and issues related to their break ups have yet to be considered as a specific study objective in Spain. There is a variety of reasons for this: on the one hand, it may be due to the very short period of time since the legalization of these marriages and their subsequent dissolution; on the other hand, it may be because of their limited significance in the overall collection of matrimonial dissolutions.

The breakup of homosexual matrimonies has, however been the object of numerous international studies which have attempted to determine their primary characteristics. An analysis by Blumstein and Schwartz (1983), subsequently continued by Kurdek (1991, 1992), highlighted that homosexual couples have a higher rate of break ups, approximately double in the case of lesbians as compared to gays.

More recently, it has been confirmed that male couples tend to remain together for longer periods of time than lesbian couples (Rothblum, Kimberly and Wickham, 2018).

These authors examined couples for 12 years, controlling for variables such as relationship duration, education and income level or the custody of children, among others.

On the other hand, certain studies have detected a low level of conflict in the dissolutions of this type of couples (Goldberg and Allen, 2013). This leads to shared custody in a large majority of these cases (Gar- trell et al., 2011).

Indeed, the variables explaining the characteristics of homosexual relationship breakups have been examined much more often on an international level as compared to Spain. In this country, there is a clear def- icit of empirical studies on the dissolution of this type of matrimonies and even more so, on the subsequent assignment of custody.

Some of these variables, which have already received international consideration, are examined in this article, using data from the ENSD. Others, such as income or education level of the partners, have not been verified, since they were not included in the cited statistics.

One very interesting aspect, although beyond the scope of this work, refers to the gender blind (Pereda and Tamarit, 2019; Ferrer and Bosch, 2019). This issue may be highly relevant here, since same sex couples do not have only one mother or father and therefore, the gender dimension, which can so clearly influence the assignment of parental custody, is not acti- vated. Gender blindness may contribute to the fact that, when same sex couples with children divorce, judges do not reveal a preference to allocate custody to the mothers as opposed to the fathers, or vice versa. The judicial figure acquires notoriety in the processes of custody assignment, as revealed in diverse studies (Jiménez, Becerril and García, 2020; Becerril, 2008).

In this type of matrimonies, gender blindness may be a crucial factor behind understanding the custody model that is ulti- mately granted.

The assignment of custody after homosexual divorce is a social reality that has yet to be addressed. Therefore, the overall objective of this study is to determine which variables influence the assignment of custody following divorce in homosexual and heterosexual couples in Spain, and potential differences or similarities in this assignment.

M

ethods

After an opportune review of the state of the issue, the following hypothesis was established: regardless of matrimony type, the presence of minor or legally-aged dependent children, conflict in the divorce pro-

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cess and specific regulations of an autonomous community are variables influencing the custody modality assigned in the divorce proceeding.

A qualitative method is used, specifically, the Annulments, Separations and Di- vorces Statistics (ENSD) of the Spanish National Statistics Institute (INE) is used.

It provides data on annulments, separations and divorces occurring annually in Spain, including variables such as age of the spouses, number of children, nationality, type of custody, filing party, etc.

This source is limited, since the specific data on custody assignment for homosexual couples has been collected only since 2012. Therefore, a broader series cannot be created. However, given that the most significant transformations have taken place over recent years, it does pro- vide a relatively extensive period for the study. This is not the case for the heterosexual couples (having a more extensive series), although in order to maintain com- parability, the data for both groups was initiated in 2012.

As for the data analysis, first a descriptive analysis was performed to offer information in the most detailed manner possible. Likewise, the multivariate factorial analysis technique was used, along with a data reduction technique, working only with data from 2017¹. As Ferrán (1996) suggested, the factorial analysis is a technique that allows us to simply explain a reality by reducing the initial variables (normally in a high number) to a smaller set of dimensions (known as factors). This technique allows for an increased ease of interpreta- tion of reality at the lowest cost possible, in terms of information loss, an essential

1 The statistical operations were only performed on those from 2017 given that upon applying the same techniques to each database since 2007, the results obtained from the factorial analysis followed the same pattern.

condition when selecting an analysis technique. To determine if this analysis is ap- propriate, Bartlett’s test of sphericity was performed (allowing for the detection of the presence of a relationship between variables) as well as the KMO measure of sampling adequacy. Since this analysis serves as an initial approach to the variables influencing the custody modality assigned, and does not attempt to make predictive pretensions, this technique is appropri- ate, since it permits knowledge of how certain variables relate more to some and less to others (Kline, 1994; García, Gil and Ro- dríguez, 2000).

To calculate the correlation matrix, the Pearson’s correlation coefficient was used, although distinct opinions exist with regard to its use. While it is true that multivariate analysis presents difficulties in terms of analyzing dichotomous variables, the need for data reduction is an urgent reality in the social sciences. Kubinger (2003) highlighted the need to apply tetrachoric correlation, a function that is not available in SPSS, instead of the Pearson coefficient, since it offers optimal results in terms of es- timate magnitudes (Hoffman et al., 2013).

Researchers such as Bartholomew (1980), however, do not consider the use of Pear- son’s correlation coefficient to be problem- atic, since the estimates obtained based on asymmetric distribution are not severely altered if the adjustment index values are maintained at acceptable standards (0-0.08) (Jöreskog, 2001).

The principal components method is used to extract the factors. This allows for the summarizing of the majority of the initial information in the smallest possible number of factors. Finally, to facilitate interpreta- tion beyond the initial factors, the final solution is rotated based on the initial extraction (Montoya, 2007). For this, Varimax rotation is used, permitting interdependence between the rotated factors. The selected variables are shown in Table 1.

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Subsequently, and to complement the results obtained in the factorial analysis, a correspondence analysis was performed.

Although a specific application of the Prin- cipal Components Analysis (PCA) was quite useful in order to graphically visualize the shapes adopted by the relationships between the categories of variables used (Everitt and Wykes, 2001). The distinct operations were carried out using SPSS 20.0 statistical software.

r

esults anddIscussIon

Below, the main results obtained are pre- sented. First, all of the custodies assigned

following the dissolution of the heterosexual and homosexual marriages are considered.

The comparative series dates back to 2012, when data was first collected on the assignment of custody in homosexual divorces, and it continues until 2017.

While in the heterosexual divorces, the proportion of divorces with custody assignment is quite stable, in the case of homosexuals, it has increased significantly (10.3 percentage points) (Graph 3). This increase may be due to the fact that, over time, there are more homosexual matrimonies that have dissolved and, therefore, the number of those with children has also increased. It is expected that, in the future, the presence of children will continue TaBle 1. Variables used

Variables Values Variables Values

Presence of minor children

0-No

1,2,3 or more- Yes Custody assigned 1) Exclusive modality 2) Shared modality Presence of legally-aged

dependent children

0-No

1,2,3 or more- Yes

Autonomous community (existence of own law or not)

1) Andalusia, 2) Aragón, 3) Asturias, 4) I. Baleares, 5) Canarias, 6) Can- tabria, 7) Castilla y León, 8) Cas- tilla-La Mancha, 9) Catalonia, 10) Community of Valencia, 11) Extre- madura, 12) Galicia, 13) Madrid, 14) Murcia, 15) Navarra, 16) Basque Country, 17) La Rioja, 18) Ceuta, 19) Melilla.

Conflict in the divorce process

1) Consensual 2) Non-consensual

Nationality of 1^st spouse 1) Spanish 2) Foreign

Nationality of 2^ndspouse 1) Spanish 2) Foreign Age of 1^st spouse 18 to +65 Age of 2^nd spouse 18 to +65

Party filing for divorce 1) First spouse 2) Second spouse Source: Author’s own creation based on the ENSD.

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to increase in the divorces, as suggested by the trends observed in studies on homosexual matrimonies (Cortina, 2016). As for heterosexuals, a slight decrease has been seen (0.9 percentage points between 2012 and 2017). Although not highly signif-

icant, it may be associated with the current Spanish demographic situation in which births and fertility are on the decline. A related issue is the modality of these custodies that is assigned: whether it is exclusive or shared.

GRaph 3. Percentage of divorces with assigned custodies out of the total divorces, according to matrimony type (2012-2017)

0 10 20 30 40 50 60 70

2012 2013 2014 2015 2016 2017

Heterosexuals Homosexuals

Source: Author’s own creation based on data from the ENSD.

GRaph 4. Evolution of the modality of the assigned custody after the dissolution of homosexual matrimo- nies as compared to that of heterosexual matrimonies (2012-2017)

0 10 20 30 40 50 60 70 80 90

2012 2013 2014 2015 2016 2017

Shared Hetero Exclusive Hetero

Shared Homo Exclusive Homo

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In the case of homosexuals, the shared custody modality has been increasing year after year, to the detriment of the exclusive modalities (Graph 4). Although the initial year, 2012, revealed the largest difference between the two modalities (70.0%

exclusive custody as compared to 30.0%

shared custody), the trend to close this gap has been on the rise, with 2016 being the turning point. It was in this year that the

shared modality surpassed the exclusive one (51.1% shared compared to 48.9% exclusive). This trend was more evident by 2017 when the shared modality reached 51.5%. This increasing trend in the shared modality has also been seen in heterosexual couples: between 2012 and 2017, there was an increase of 15.7 percentage points, with shared custody making up 30.3% of the total custodies in 2017.

TaBle 2. KMO and Bartlett’s tests. Homosexual custody Kaiser-Meyer-Olkin test for

sampling adequacy 0.514

Bartlett’s test of sphericity Approx. Chi-square 1860.250

GI 15.000

Sig. 0.000

Kaiser-Meyer-Olkin test for

sampling adequacy 0.678

Bartlett’s test of sphericity Approx. Chi-square 2956.136

GI 15.000

Sig. 0.000

Source: Author’s own creation based on data from the ENSD (2017).

Given this differences, it would be interesting to determine which variables are related to the custody type that is assigned after divorce. Considering the factorial analysis performed and, specifically, the rotated components matrix, the presence of minor children, conflict, the presence of legally-aged dependent children and the existence of specific legislation in the autonomous community are variables related to the custody modality assigned for both sets (homosexual and heterosexual couples).

It should be noted that, in both cases, the KMO statistic and the Bartlett test (Table 2) indicate the existence of sample suitability.

The KMO statistic, which varies between 0 and 1, has a result of 0.504 in the case of homosexuals and of 0.578 in heterosexuals.

In this case, these are adequate values² that

2 As a measure, it tends to establish that values lower than 0.5 indicate that a factorial analysis should not be used with the sample data at hand (Fuente, 2011).

permit the avoidance of the error in which correlations between pairs of variables cannot be explained by other variables.

When considering the chart of total vari- ance explained by each component, and which variables have been extracted, in the case of dissolved homosexual marriages, the four extracted components accumulate 68.5 of the variability of the original variables.

For heterosexual couples, the same variables explain up to 60.6%, taking into account the same four components. Observing the rotated components matrix, for homosexuals (Table 4) it may be confirmed that the presence of minor or dependent children fits into the first component, with the presence of conflict (consensual or not) falling into the second, age of the spouses in the third and, finally, autonomous community in the fourth (whether or not there is specific legislation in the autonomous community related to the assignment of custody).

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In the case of heterosexuals, only one difference is found. Once again, the presence of children (minor or legally-aged dependent children) is situated in the first component, and the presence of conflict (or not) appears in the second. However, for this

population, specific autonomous community regulation appears in the third component, with age of the spouses being the last component. Therefore, except for this difference, similarities are observed in how these variables influence custody assignment.

Table 3. Factorial analysis (rotated components matrix)

Variables

Homosexual dissolution Heterosexual dissolution

Components Components

1 2 3 4 1 2 3 4

Autonomous community 0.147 –0.032 –0.141 0.851 0.080 0.238 0.744 0.209

Minor children 0.919 0.055 0.100 –0.003 0.860 0.023 0.087 0.113

Dependent children of

legal age 0.901 0.007 0.108 0.005 0.740 0.115 0.208 0.210

Age of 1^st spouse 0.101 0.007 0.792 –0.071 0.080 0.076 0.308 0.410

Nationality of 1^st spouse –0.102 0.015 0.055 0.050 0.091 0.258 0.312 0.289

Age of 2^nd spouse 0.108 0.052 0.820 0.051 –0.071 0.121 0.297 0.434

Nationality of 2^nd spouse –0.281 0.184 0.237 0.611 0.119 0.372 0.313 0.295 Party filing for divorce –0.001 –0.288 –0.057 0.033 0.301 0.258 0.360 0.310

Conflict 0.052 0.871 0.002 0.105 0.101 0.858 0.210 0.081

Note: Extraction method: principal components analysis.

Rotation method: Varimax with Kaiser normalization.

The appearance of these variables high- lights their importance. The same has been verified in other studies considering the dissolution of heterosexual matrimonies (Cancian and Meyer, 1998; Maccoby and Mnookin, 1992). The existence (or not) of minor or legally-aged dependent children, as well as the number of the same, has been shown to be quite relevant.

As Graph 5 reveals, in homosexual couples, shared custody is the most frequent modality assigned to divorcing couples having a low number of children. More specifically, this is the case for couples with up to two children in the case of minors and for one in the case of a legally- aged dependent child. This may be due to the fact that the mean number of children in this type of matrimonies was ap-

proximately 1 between 2012 and 2017. In the case of the dissolution of heterosexual matrimonies, this scenario does not change considerably. In the case of mi- nor children, shared custody is more likely when there are between two and three children, once again possibly related to the mean number of children for this type of matrimonies (which was found to be approximately 1.3 between 2012 and 2017).

Furthermore, the shared custody modality also appears in the case of legally-aged dependent children, being the most common modality when there are two children in the family unit. Therefore, this variable appears to maintain its importance in the assignment of custody following the breakup of both homosexual and heterosexual marriages.

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On the other hand, the presence of conflict in the divorce proceeding also appears to be a determinant factor. It may be expected that, in consensual proceedings, the probabilities of establishing the shared custody modality will increase, to the detriment of the exclusive modality. Thus, the results of the factorial analysis indicate

that this variable is related to the type of custody assigned following the divorce.

This coincides with the findings of Becer- ril and Jiménez (2016), who observed that in homosexual matrimonies, following their breakup (consensual or contentious), the custody modality granted for the children could vary.

GRaph 5. Correspondence analysis of type of custody according to the number of minor and legally-aged dependent children (2017)

3

2

1

0

–1–1 0 1 2 3

4

3

2

1

0

–1–1 0 1 2 3 4

1

0

–1

–2

–3–3 –2 –1 0 1

3

2

1

0

–1–1 0 1 2 3

4

1

2

5

4

3 2 1

5

4 3

1 2

Custody after homosexual divorce

Assigned custody modality No. of minor children

Assigned custody modality

No. of legally-aged dependent children

Dimension 2 Dimension 2

P-value 0,000 P-value 0,000

Exclusive

Exclusive Shared

Shared

Shared Others

Others

Custody after heterosexual divorce

Assigned custody modality Assigned custody modality

No. of minor children No. of legally-aged dependent children

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In this case, the presence of conflict is essential (Graph 6). The existence of agreement or disagreement is a key factor. When considering divorce according to composition, homosexual or heterosexual, it is quite evident that, as the level of agreement increases, so does the incidence of shared custody. In the case of the former, there is an almost direct relationship. For the latter, the relationship is not as intense, although a slight increase in consensus of the dissolutions is accompanied by an equally slight decrease in exclusive custody, in favor of the shared modality (while consensual heterosexual divorces increased from 63.7%

in 2007 to 77.7% in 2017, the shared custody modality registered an increase of 20.7 percentage points during the same period, reaching 30.3% of all assigned custodies in 2017). This is in line with the findings of Wil- cox, Wolchik and Braver (1998), who suggested that shared custody is more likely when there are low levels of conflict or a higher degree of consensus between the members of the couple.

The existence of specific legislation in an autonomous community is another variable that should be considered when exam- ining the custody modality assigned following divorce in homosexual and heterosexual couples (Graph 7). The results of the ap- plied technique indicate that the existence (or not) of a specific law may be related with the custody modality that is assigned for both types of matrimonies, although to a lesser extent for homosexual couples.

In the case of homosexuals, this variable has been found to have less importance than for heterosexuals. In divorced homosexuals, the age of the spouses is situated in the third component while the existence of specific regulations in the autonomous community is situated in the fourth.

In heterosexual couples, however, this re- gional regulation is found to be more important than spouse age, being situated in the third component. This may be due to the fact that homosexual spouses tend to be younger at the time of the divorce as compared to their heterosexual counterparts (Cortina and Cabré, 2010; Esteve, Cortina GRaph 6. Correspondence analysis of the type of custody and the existence of conflict in the divorce pro-

ceedings according to composition of the matrimony

1,5

1,0

0,5

0,0

–0,5

–1,0

–1,5–1,5 –1,0 –0,5 0,0 0,5 1,0 1,5

1

0

–1

–2

–3

–4–4 –3 –2 –1 0 1

Heterosexual divorce Homosexual divorce

Type of custody Type of custody

Sentence ruling Sentence ruling

Shared

Shared Exclusive

Exclusive Mother

Exclusive Father Consensual

Consensual

Contentious

Other relatives

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and Cabré, 2009) and there tends to be a greater age difference between spouses (Cortina, 2016). This difference is greater,

specifically in male-male matrimonies as compared to same sex female couples (Ca- pote and Nieto, 2018).

GRaph 7. Correspondence analysis of the type of custody and autonomous community, according to com- position of the matrimony

1,0

0,5

0,0

–0,5

–1,0

–1,5

–2,0

–2,5–2,5 –2,0 –1,5 –1,0 –0,5 0,0 0,5 1,0

2

1

0

–1

–2–2 –1 0 1 2

4 10

10 9

9 216

16 Mother

Father 17 13

13

6 1

1 7

5

5 3

3 14

14 12

12 8

8 11

11

15

01 Andalucía

02 Aragón

03 Asturias, Principado de 04 Balears, Illes

05 Canarias

06 Cantabria

07 Castilla y León 08 Castilla - La Mancha

09 Cataluña

10 Comunitat Valenciana

11 Extremadura

12 Galicia

13 Madrid, Comunidad de 14 Murcia, Región de 15 Navarra, Comunidad Foral de

16 País Vasco

17 Rioja, La

Shared

Heterosexual divorce Homosexual divorce

Exclusive Shared

Other relatives Autonomous

communities

Custody rates Autonomous community codes ^Autonomouscommunities

Custody rates

After applying the referred techniques, it can be confirmed that the hypothesis “regardless of matrimony type, the presence of minor or legally-aged dependent children, conflict in the divorce process and specific regulations of an autonomous community are variables influencing the custody modality assigned in the divorce proceeding”, is validated. However, it should once again be mentioned that in the case of homosexuals, the age of the spouses takes on special relevance, which is not as important in the heterosexual case. Finally, variables such as nationality or the party filing for the divorce do not appear to be fundamental in the determination of the custody modality.

c

onclusIons

This article considers the assignment of custody following divorce in homosexual and heterosexual matrimonies, as well as the degree of influence of certain variables

on the process of this custody assignment.

Specifically, it considers the number of mi- nor and legally-aged dependent children, the existence of specific regulations in the autonomous community, the presence of conflict in the divorce proceedings and the nationality of the spouses. This work is of special interest, given that, although custody assignment following divorce has been analyzed by distinct disciplines on a national and international scope, in Spain, there is a clear lack of studies in this area with regard to homosexual matrimonies. Furthermore, no comparative is available based on the composition of the dissolved matrimonies.

The analysis suggests that the most common custody option granted in heterosexual divorces continues to be exclusive maternal custody, despite a decreasing trend in this modality. In the case of homosexual divorces, however, since 2016, shared custody has been the predominant modality assigned. And it was precisely in 2016 when, for the first time, shared custody became

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the top option (51.0%), continuing to be so today. In the case of heterosexuals, shared custody is acquiring an increased relevance, currently situated at number three of the assigned modalities. However, this increase has been a slow and progressive process, and it continues to be quite distinct from the situation of homosexual couples.

On the other hand, it has been verified that certain social variables have a major influence on the assignment of custody.

For both homosexuals and heterosexuals, it has been found that the presence of mi- nor children, conflict, legally-aged dependent children, and specific regulations in the autonomous community are all relevant factors in determining the custody modality to be assigned. All of these variables have been shown to be decisive in diverse studies, such as those by Maccoby and Mnookin (1992), Kurdek (1991, 1992), Sol- sona, Spijker and Ajenjo (2017) or Jiménez and Becerril (2020).

Specifically, in the case of homosexuals, shared custody appears as the most common modality for divorcing matrimonies with a low number of children. In the case of minors, this “low number” refers to up to two children and in the case of legally-aged dependent children, one child. This is in line with the conclusions reached by Maccoby and Mnookin (1992) who indicated that shared custody is more likely in couples having only one child in common. A high degree of consensus in the divorce proceeding appears to favor the shared custody modality, as compared to exclusive custody. The level of consensus in divorces has remained at over 80% since 2008 in this type of matrimonies. Furthermore, it was in 2016 when the rate of shared custodies surpassed that of exclusive custodies, coinciding with the fact that consensual divorces made up over 90% of all of these divorces. It should be noted that shared custody is more likely in situations of low conflict (Chaussebourg, Carrasco and Lermenier, 2009).

For heterosexuals, this scenario varies, mainly with regard to on one variable: conflict (consensus or dissent). In the case of minor children, shared custody is more often to be granted in cases in which there are two to three children involved. This is almost identical in situations of legally-aged dependent children, in which this custody modality is more common when there are two children. Therefore, this variable appears to maintain its importance in the assignment of custody following the breakup of both homosexual and heterosexual matrimonies.

The main variation, however, is found with regard to the existence of consent and dissent. While in the case of homosexuals, a high presence of consent in the divorce contributed to shared custody being more common than exclusive custody, for heterosexuals, this is not necessarily the case.

The degree of consensus in the latter is not as high, although over time, it has been on the rise, increasing from 63.7% in 2008 to 77.7% in 2017 (ENSD). Furthermore, the percentage of shared custody has also been rising, to the detriment of the exclusive custody modality, but this increase has been gradual and, in large part, it may have been promoted by legislation implemented by the diverse Spanish autonomous communities.

This has given way to a decrease in exclusive maternal custody in these autonomous communities, in favor of shared custody.

The autonomous community variable appears to be more important in the case of heterosexual couples, as compared to homosexual matrimonies. For the latter, the age of the spouse appears to be more relevant. This may be due to the fact that the spouses tend to be younger at the time of divorce, as compared to heterosexual couples (ENSD).

This study has certain difficulties and limitations. First, it attempts to compare two populations, divorcing homosexual and heterosexual matrimonies, whose available data has certain inequalities. Not only are the collected variables distinct for many

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years, but also, the volume of the data worked with is quite different. Also, the matrimonial and divorce behaviors of homosexual couples correspond to a contingent created at the historic time of its legalization, which included past stock. This may result in distinct characteristics for these couples, as compared to those recorded during a subsequent period of “normalization” of homosexual marriage/divorce. Second, only a limited number of variables are available for analysis. Those related to economic and education levels, ideological positioning, age of children, etc, were unavailable. Thus, the analysis, although extensive, is not as complete as would be desired.

Clearly, this social reality needs further study and understanding. The assignment of custody is a phenomenon that relates to multiple and varied disciplines, all of which are interrelated. Specifically, in the case of homosexuals, the current literature available is not very extensive and it tends to focus on marriage, as opposed to divorce.

And even less so, on custody assignment.

Therefore, this study seeks to examine a part of reality that is quite complex, referring to a topic that has yet to receive attention. Although the results are only applica- ble to the case of Spain, since the data was gathered from the Annulments, Separa- tions and Divorces Statistics (ENSD) of the Spanish National Statistics Institute (INE), we believe that the methodology used and the results obtained may serve to guide researchers interested in this topic, at all levels. In the future, studies based on predictive analyses or qualitative techniques may help to extend the understanding of this phenomenon and allow us to learn more about this emerging social reality.

B

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